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September 21, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 92 BOP facilities and 13 RRCs

Currently positive-testing inmates: 239 (down from 267) Currently positive-testing staff: 500 (down from 571) Recovered inmates currently in the BOP: 49,074 (down from 49,090) Recovered staff: 13,995 (up from 13,919)


Institutions with the largest number of currently positive-testing inmates:

Berlin FCI: 36 (unchanged)

Yazoo City Low FCI: 24 (unchanged)

Houston FDC: 23 (up from 22)

Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 57 (unchanged)

Brooklyn MDC: 32 (unchanged)

Rochester FMC: 25 (down from 26)

System-wide testing results: Presently, BOP has 142,709 federal inmates in BOP-managed institutions and 14,021 in community-based facilities. Today's stats: Completed tests: 128,707 (up from 128,706) Positive tests: 55,355 (up from 55,354)


Total vaccine doses administered: 329,787 (up from 329,722)


Case Note: After serving three years of five year cocaine sentence, defendant, suffering from cancer, hypertension and diabetes, goes home...


In U.S. v. Grajeda, No. CR 19-10395-LTS, 2022 WL 4237278 (D. Mass. Sept. 14, 2022) (Sorokin, J.), the court, waiving exhaustion because the defendant is not in BOP custody, reduced its recently imposed 60-month sentence to time-served due to the defendant’s myriad medical conditions, including cancer, explaining: "On September 23, 2021, Grajeda pleaded guilty to one count of possessing with intent to distribute cocaine. Doc. Nos. 116, 170. The Court sentenced Grajeda on June 30, 2022, to sixty months’ incarceration—the mandatory minimum term required by law and recommended by both parties. See Doc. Nos. 166, 168, 170. Detained since her arrest in this matter on September 11, 2019, Grajeda has served approximately thirty-six months of her sentence; her release date, according to the Bureau of Prisons (“BOP”), is presently December 14, 2023. Grajeda is nearly fifty-nine years old; she suffers from metastatic renal cancer and has a documented history of hypertension and diabetes. The most recent records before the Court show that, despite the removal in March 2022 of one kidney, Grajeda's doctors believe her cancer continues to spread, and that various obstacles have delayed or impeded her treatment. … On August 18, 2022, Grajeda filed a Motion for Compassionate Release in which she asks the Court to reduce her sentence “to time served” so that she may return to her family and have their support “as she continues to battle the ravages of her Stage IV cancer diagnosis,” and in the event that “all treatment options fail.” … Because Grajeda has not yet arrived in BOP custody, where such avenues exist, the government urged the Court to deny her request without prejudice to her refiling it later, in the event she is denied compassionate release by the BOP after she arrives at FMC-Carswell. Id. Though it summarily asserts that Grajeda's medical records do not “in any comprehensible way” establish that “her condition” is severe enough to merit a sentence reduction, the government advances no developed challenge to the accuracy of the medical records, nor does it argue that other factors (e.g., public safety) should cause the Court to deny her motion. … Grajeda argues courts may waive or excuse compliance with statutory exhaustion requirements such as the one at issue here in certain circumstances, and she urges that this case presents such circumstances. As at least two other sessions of this Court have explained, “the exhaustion requirement of § 3582(c)(1)(A) is not jurisdictional” and, thus, equitable exceptions may allow Grejada to obtain relief despite having failed to pursue all available administrative processes. Here, the record before the Court establishes that requiring Grajeda to follow the course outlined by the government—that is, await her transfer to Texas (the timing of which the government neither knows for certain nor has attempted to estimate), then ask the BOP representatives operating that facility to seek compassionate release on her behalf, then either await a denial of her request or the passage of thirty days after its submission, and only then reiterate her request in this Court—risks undue prejudice in the form of continued physical suffering and potential deterioration of her already severe health conditions. … The question, then, is whether, having “consider[ed] the factors set forth in [18 U.S.C. §] 3553(a),” Grajeda has identified “extraordinary and compelling reasons” warranting a reduction in her sentence. § 3582(c)(1)(A)(i). … Here, Grajeda's medical records demonstrate that she suffers from serious conditions, most notably late-stage cancer that appears to be spreading throughout her body despite interventions including surgery and immunotherapy. See generally Doc. No. 188. The government has not engaged with the substance of the medical records, disputed the cancer diagnosis or its severity, or made any showing that her transfer to FMC-Carswell will alter the apparent trajectory of her disease. This Court finds that Grajeda has established an extraordinary and compelling reason for a reduction in her sentence based on evidence that she suffers from metastatic cancer—a condition expressly cited as an example of a “terminal illness” that would qualify as “extraordinary and compelling” in the Application Notes to the relevant section of the Sentencing Guidelines, in language excerpted in the government's response. … The seriousness of Grajeda's current medical condition—a substantial change from the state of affairs at the time of her crime—coupled with the absence of any suggestion by the government in its response that it believes Grajeda's release will endanger anyone, also favor a finding that Grajeda does not presently pose a danger to the safety of others or the community. In sum, under the totality of circumstances on the record before the Court, having carefully considered the factors identified in 18 U.S.C. § 3553, the safety of the public, and the other conditions listed in § 1B1.13 of the Sentencing Guidelines, the Court finds that a reduction in Grajeda's sentence is both warranted and consistent with the Sentencing Commission's Policy Statement.”



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP identified the additional two inmate fatalities announced yesterday as Glen McGahan, 51, of FMC Rochester, who died March 6, 2022, and David Hinkson, 65 of FMC Butner, who died February 4, 2022. The total number COVID-related inmate deaths remains at 308. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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